Amendment and Restatement Deed

127 Pages·2017·2.15 MB·English

CBA.0001.0320.6454
o
Deacons
Dated !2.. \) f e.b YlAJM'1..f l.o 0 ct
Amendment and Restatement
Deed - Facility Agreement
Parties
Trademore Services pty Ltd ACN 109667076 in its own capacity and as
trustee for the Trademore Services Trust
(Borrower)
Michael Edwin Doherty
Ballarat Lodge Pty. Ltd. ACN 083 002 555 in its own capacity and as
trustee for the Ballarat Lodge Trading Trust
Doherty Hotels Pty. Ltd. ACN 051 541158 in its own capacity and as
trustee for the Hadleys Hotel Trust
Doherty Hotels (Ballarat) pty. Ltd. ACN 083028148 in its own capacity
and as trustee for the Doherty Ballarat Property Trust
Hadleys Pty. Limited ACN 009 515 806
KMC Investments pty. Ltd. ACN 060 242 506
(Guarantor)
Tidal Waters Pty Ltd ACN 092 669988 in its own capacity and as trustee
for the Tidal Waters Freehold Unit Trust
(Incoming Guarantor)
Bank of Western Australia Ltd ACN 050 494 454
(Bank)
Contact
Nino Di Bartolomeo
Partner
Grosvenor Place, 225 George Street,
Telephone:
Email:
Website:
Our Ref: . _
CBA.0001.0320.6455
Contents
1. Definitions and Interpretation .................................................................... 2
2. Amendment and Restatement of Principal Agreement ............................. 3
3. Confirmation ............................................................................................. 3
4. Representations and Warranties .............................................................. 4
5. Further assurflnce .................................................................................... 4
6. Severability .............................................................................................. 4
7. Counterparts ............................................................................................ 5
8. Governing law .......................................................................................... 5
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Deed dated
Parties Trademore Services Pty Ltd ACN 109 667 076 .in its own
capacity and as trustee for the Trademore Services Trust
of ................................... .
(Borrower)
Michael Edwin Doherty
of
Ballarat Lodge Pty. Ltd. ACN 083 002 555 in its own capacity
and as trustee for the Ballarat Tradi Trust
of
Doherty Hotels Pty. Ltd. ACN 051 541158 in its own capacity
and as trustee for the Hotel Trust
of
Doherty Hotels (Ballarat) Pty. Ltd. ACN 083 028148 in its own
and as trustee for the Do Ballarat Trust
Hadleys Pty. Limited ACN 009 515806
of ••••••••••••_
oKMfC. I_n ves_tme_nts_ Pty_. Lim_ite_d AC_N 0_602_425_06_
(together the Guarantors)
Tidal Waters pty Ltd ACN 092 669 988 in its own capacity and
as trustee for the Tidal Waters Freehold Unit Trust
of ____- --------_
(Incoming Guarantor)
Bank of Western Australia Ltd ACN 050 494 454
of Level 5, 600 Bourke Street, Melbourne VIC 3000
(Bank)
Introduction
A. The Borrower, the Guarantors and the Bank are parties to the Principal
Agreement under which certain financial accommodation is made
available to the Borrower.
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B. The Incoming Guarantor has agreed to become a Guarantor, a Corporate
Transaction Party and a Transaction Party and be bound by the terms of
the Principal Agreement (as restated and amended by this Deed) as a
Guarantor, a Corporate Transaction Party and a Transaction Party as if it
was originally named as a Guarantor, a Corporate Transaction Party and
a Transaction Party in the Principal Agreement, on the date on which all
documents and matters set out in Schedule 1 have been complied with or
waived by the Bank.
C. The parties have agreed that on the date of this Deed the Principal
Agreement will be amended and restated as provided in Annexure A.
It is agreed
1. Oefinitions and Interpretation
1.1 Definitions
In this Deed, definitions in the Principal Agreement apply unless the
context requires otherwise or the relevant term is defined in this Deed.
The following definitions apply in this Deed:
(1 ) Deed means this document, including any schedule or annexure to
it; and
(2) Principal Agreement means the Facility Agreement dated 12
September 2008 between the Borrower, the Guarantors and the
Financier as amended and restated from time to time.
1.2 Interpretation
(1) Headings are for convenience only, and do not affect
interpretation. The following rules also apply in interpreting this
Deed, except where the context makes it clear that a rule is not
intended to apply.
(2) A reference to:
(a) a document or agreement, or a provision of a document or
agreement, is to that document, agreement or provision as
amended, supplemented, replaced or novated;
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(b) a party to this Deed or to any other docurlJent or agreement
includes a permitted substitute or a permitted assign of that
party;
(c) a person includes any type of entity or body of persons,
whether or not it is incorporated or has a separate legal
identity, and any executor, administrator or successor in
law of the person; and
(d) anything (including a right, obligation or concept) includes
each part of it.
(3) A singular word includes the plural, and vice versa.
(4) A word which suggests one gender includes the other genders.
(5) If a word is defined, another part of speech has a corresponding
meaning.
(6) If an example is given of anything (including a right, obligation or
concept), such as by saying it includes something else, the
example does not limit the scope of that thing.
(7) The word agreement includes an undertaking or.other binding
arrangement or understanding, whether or not in writing.
(8) Terms not defined in this Deed have the meaning given to them in
the Principal Agreement.
2. Amendment and Restatement of Principal Agreement
2.1 The Incoming Guarantor acknowledges and all other parties to this Deed
agree that the Principal Agreement is amended and restated as shown in
Annexure A on the date on which all documents and matters set out in
Schedule 1 have been complied with or waived by the Bank.
3. Confirmation
3.1 Each party is bound by the Principal Agreement as restated and amended
by this Deed.
3.2 The Incoming Guarantor agrees to become a Guarantor, a Corporate
Transaction Party and a Transaction Party and be bound by the terms of
the Principal Agreement (as restated and amended by this Deed) as a
Guarantor, a Corporate Transaction Party and a Transaction Party as if it
was originally named as a Guarantor, a Corporate Transaction Party and
a Transaction Party in the Principal Agreement.
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3.3 Each party consents to the Incoming Guarantor assuming the rights and
obligations as a Guarantor, a Corporate Transaction Party and a
Transaction Party under the Principal Agreement.
4. Representations and Warranties
4.1 The Borrower, each Guarantor and the Incoming Guarantor:
(1) makes each of the representations and warranties set out in
clause 15.1, 15.2 and 15.3 of the Principal Agreement to the Bank;
and
(2) where it is a trustee of any Trust, it has provided a copy of the
Trust Deed establishing that Trust and any documents amending
the Trust Deed to the Bank and there have been no changes to
those documents (in the absence of any written notification to the
contrary to the Bank accompanied by replacement or variation
documents);
both as at the date of this Deed and on the date on which all documents
and matters set out in Schedule 1 have been complied with or waived by
the Bank.
5. Waiver of Condition Precedent
5.1 The Bank may waive non-compliance with any Condition Precedent
referred to in Schedule 1 but despite that waiver the Bank may require
compliance with the condition waived at any subsequent time by notice in
writing to the Borrower within the time specified in that notice.
5.2 The Conditions Precedent specified in Schedule 1 are for the benefit of
the Bank and not the Transaction Parties and it is the Bank only who may
waive the fulfilment of any of them at any time before or after the time by
which they must be fulfilled.
6. Further assurance
6.1 Each party must promptly at the cost of the Borrower do all things
(including executing and if necessary delivering all documents) necessary
or desirable to give full effect to this Deed.
7. Severability
7.1 If anything in the Principal Agreement as amended by this Deed is
unenforceable, illegal or void then it is severed and the rest of the
Principal Aweement as amended by this Deed remains in force.
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8. Counterparts
8.1 This Deed m'ay be executed in any number of counterparts. All
counterparts taken together will be taken to constitute one agreement.
9. Governing law
9.1 This Agreement is governed by the laws of New South Wales. The
Borrower and the Guarantors submit to the non-exclusive jurisdiction of
courts exercising jurisdiction there.
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Schedule 1
(Clause 2)
(1) General
Receipt of the following in form and substance satisfactory to the Bank:
(a) this document signed by the Transaction Parties;
(b) all documents required by the Bank for the provision of any facility
as specified in this document;
(c) the Security which has been properly signed, stamped and is in
registrable form;
(d) all certificates of title to the Mortgaged Property and all stamped
transfers for any Mortgaged Property;
(e) the results of any inspections, searches or enquiries that the Bank
may make regarding any Transaction Party or the Mortgaged
Property;
(f) all information that the Bank has requested from any Transaction
Party;
(g) all forms which the Bank has sent to each Transaction Party for
completion and return to the Bank;
(h) if required by the Bank, a legal opinion from the Bank's solicitors;
(i) confirmation from the Bank that all "know your customer checks"
that the Bank required to carry out in relation to each Transaction
Party are complete;
U> all conditions precedent specified in this document; and
U) any other documents or information which the Bank or the Bank's
solicitors consider are necessary or desirable.
(2) Site visit by valuer
An independent valuer approved by the Bank to visit the site at the Grand
Mercure Hadleys Hotel and provide specific commentary on the
underfying value, estimated costs and income forecast (including
occupancy h~vels, RevPar and ARR etc) and to be found satisfactory to
the Bank.
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(3) Estimated maintenance and ongoing CAPEX
The Borrower to provide confirmation of the estimated maintenance and
ongoing capital expenditure (including a cash flow model) in respect of the
Security to be found satisfactory to the Bank.
(4) Site visit by the Deal Team
The Bank's deal team to visit the site at the Grand Mercure Hadleys Hotel
and provide detailed comments confirming their 100% satisfaction with the
site, including the proposal, the location etc, to the Bank.
(5) Cost Overrun
The Borrower must pay any cost overrun from its own resources.
(6) Quantity Surveyor's Report on the Builder
A report addressed to the Bank from one of its approved panel quantity
surveyors (at the expense of the Borrower) to be provided to the Bank by
31 January 2009 confirming in accordance with the Bank's standard
instructions:
(a) that the contract for the Building Works meets the Bank's
requirements set out in this document and the contract has not
been varied from the most recent version reviewed by the Bank;
(b) that up to date copies of all plans, specifications and sub-contracts
for the Building Works have been reviewed and are acceptable;
(c) that the Building Works can be completed in accordance with the
contract for those Building Works, any agreement to lease and any
qualifying pre sales contract within the time required for strict
compliance with those agreements for the fixed price specified in
the contract for those Building Works;
(d) that the total cost of the Building Works and the allocation of that
cost is reasonable; .
(e) that the progress drawdown schedule is reasonable;
(f) that all costs of the Building Works are net of GST;
(g) the amount of the contingency allowance and that this amount is
adequate to complete the Building Works to practical completion;
(h) that the consultants selected are adequate and that their fees are
reasonable;
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(i) that the total time and the allocation of time to complete the
Building Works under the contract for those Buildings Works is
reasonable;
0) the financial performance of the Builder and that the Builder of the
Building Works is licensed and acceptable to the Bank (including
confirmation of their experience in completing a building of the
current type, size, etc);
(k) that the plans and specifications approved by the relevant
authorities are the same as those upon which the costs of the
Building Works provided to the Bank are based; .
(I) that all insurances necessary or desirable for Building Works of
this type are in full force and effect for the period to reach practical
completion of the Building Works, including:
(i) public liability and general building insurance for the
Borrower, specifying that the Bank is the party to whom the
insurance cover extends;
(ii) public liability, professional indemnity, workers
compensation, builders warranty and construction works
insurance for the Builder, specifying that the Bank is the
party to whom the insurance cover extends; and
(iii) professional indemnity insurance for each consultant;
(m) the level of "profit" to the Builder under the contract for the Building
Works and that this profit is reasonable;
(n) that all necessary Licences for the Project and the Building Works
have been obtained by the Borrower, the Builder and all
subcontractors and are current; and
(0) that the terms of any agreement to lease and any qualifying pre
sales contract are being complied with, including in relation to any
fit out obligations specified in those agreements.
(7) Conflict of interest
The Borrower to note Npaier & Blakeley's involvement in the matters
associated with the Facilities and confirm that no conflict of interests
exists in respect of the Bank's Facilities to the Borrower as a result of
Npaier & Blakeley's involvement.
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